93 Decision Citation: BVA 93-09857
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 90-27 650 ) DATE
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THE ISSUE
Entitlement to a total disability rating based on individual
unemployability due to service-connected disabilities.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars
of the United States
ATTORNEY FOR THE BOARD
M. S. Raubertas, Counse
INTRODUCTION
This matter came before the Board of Veterans' Appeals
(hereinafter the Board) on appeal from rating decisions of the
New Orleans, Louisiana, Regional Office (hereinafter the RO).
The veteran had active military service from May 1966 to August
1967. By rating action in February 1990, the veteran's request
for increased evaluations for residuals of a shell fragment wound
to the left lower extremity, lumbosacral strain, and scarring as
a residual of a shell fragment wound to the right lower extremity
was denied. In addition, the combined disability evaluation was
reduced from the 50 percent disability evaluation that had been
in effect from August 28, 1970, to 40 percent disabling effective
from June 1, 1990. Entitlement to a total rating based on
individual unemployability due to service-connected disability
was also denied. A notice of disagreement was received in April
1990. The veteran was provided with a statement of the case with
respect to an increased evaluation for the veteran's service-
connected disabilities in April 1990. The veteran's substantive
appeal was received in May 1990. The case was received and
docketed at the Board in July 1990. The case was referred to the
veteran's accredited representative and that organization
submitted written argument on behalf of the veteran in January
1991. The Board issued a denial with respect to the issues of
entitlement to an increased evaluation for residuals of a shell
fragment wound to the left lower extremity, an increased
evaluation for lumbosacral strain, and an increased evaluation
for scarring as a residual of a shell fragment wound to the right
lower extremity. Entitlement to restoration of a combined
disability rating of 50 percent was allowed. Following an appeal
to the United States Court of Veterans Appeals (hereinafter the
Court), the Board's decision of July 30, 1991, was affirmed in
part and vacated in part and remanded back to the Board in a
memorandum decision of October 7, 1992. [citation redacted].
REMAND
The order issued by the Court affirmed the July 30, 1991, Board
decision with respect to the issues adjudicated therein. The
Court found, however, that the veteran had raised the issue of
entitlement to a total disability rating based on individual
unemployability due to service-connected disability but that this
issue had not been addressed by the Board. The case was remanded
back to the Board for adjudication of that claim and issuance of
a new decision.
In written argument on behalf of the veteran submitted to the
Board in February 1993, the veteran's representative has
requested that the case be remanded to the RO for additional
development of the medical evidence. In this regard, we note
that the veteran has apparently been receiving outpatient
treatment at Department of Veterans Affairs (VA) medical
facilities but that these treatment records are not of record.
In addition, the veteran has not received a VA examination for
compensation purposes since January 1990. We also believe that
it would be helpful in adjudicating the veteran's claim for a
total rating based on individual unemployability to obtain a
social and industrial survey to shed light on the degree of
employment impairment caused by his service-connected
disabilities. We also note that the veteran submitted an
application for vocational rehabilitation in June 1990. An
evaluation of the veteran's suitability for vocational
rehabilitation is not, however, of record.
VA has a duty to assist the veteran in the development of facts
pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38
C.F.R. § 3.103(a) (1992). The Court has held that the duty to
assist the veteran in obtaining and developing available facts
and evidence to support his claim includes obtaining records in
the VA's possession as well as affording him an additional VA
examination by a specialist where appropriate. Hyder v.
Derwinski, 1 Vet.App. 221 (1991); Littke v. Derwinski, 1 Vet.App.
90 (1990).
In light of the foregoing, this case is REMANDED for the
following action:
1. All outpatient treatment records
referable to the veteran for the period from
October 1989 to the present should be
obtained for incorporation into the
appellate record.
2. The veteran's vocational rehabilitation
(Chapter 31) folder, if any, should be
obtained and associated with the appellate
record.
3. The veteran should be afforded a special
VA orthopedic examination by a board
certified orthopedist to determine the
nature and extent of his service-connected
disabilities. All indicated
tests and studies should be accomplished and
all findings reported in detail.
4. A social and industrial survey should be
conducted. It should include interviews
with neighbors, former employers, and other
disinterested parties who may have knowledge
of the veteran's industrial history and
current employability.
5. When the above development has been
accomplished, the RO should review the
veteran's claim for a total disability
rating based on individual unemployability
due to service-connected disabilities. In
the event the action taken remains adverse
to the veteran, he and his representative
should be provided with a supplemental
statement of the case setting forth a
summary of the relevant evidence, the
applicable laws and regulations, and the
reason for the determination reached.
When the foregoing development has been accomplished, the veteran
should be afforded a reasonable period of time within which to
respond to the supplemental statement of the case. Thereafter,
subject to current appellate procedures, the case should be
returned to the Board as expeditiously as practicable. The
purpose of this REMAND is to obtain additional evidence and to
ensure due process of law. No inference should be drawn
regarding the final disposition of the appeal.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
IRVIN H. PEISER, M.C.
E. W. SEERY
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans'
Appeals Se
the Chairman of the Board, to proceed with the transaction of business
without a
additional member to the Section when the Section is composed of fewer
than thre
absence of a Member, vacancy on the Board or inability of the Member
assigned to
the panel. The Chairman has directed that the Section proceed with
the transact
the issuance of decisions, without awaiting the assignment of a third
Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1992).